| People v Franklin |
| 2017 NY Slip Op 00217 [146 AD3d 1082] |
| January 12, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vArnayis Franklin, Also Known as Artie, Also Known as Arnie,Appellant. |
Aaron A. Louridas, Delmar, for appellant, and appellant pro se.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel),for respondent.
Egan Jr., J.P. Appeal from a judgment of the County Court of Ulster County(McGinty, J.), rendered August 30, 2011, convicting defendant upon his plea of guilty ofthe crime of criminal possession of a controlled substance in the third degree.
In September 2005, defendant was charged in an eight-count indictment with variousdrug-related offenses. Thereafter, in July 2006, defendant—in full satisfaction ofthe foregoing indictment—pleaded guilty to one count of criminal possession of acontrolled substance in the second degree and, in September 2006, was sentenced to theagreed-upon term of 10 years in prison followed by five years of postrelease supervision.Four years later, defendant filed a pro se CPL article 440 motion contending, amongother things, that his sentence had been illegally imposed based upon a misapprehensionas to the aggregate weight required to sustain his conviction under Penal Law§ 220.18.[FN1] The People did not oppose this requestand, in May 2011, County Court [*2]granted defendant'smotion, vacated the plea and sentence and scheduled the matter for further proceedings.Defendant appeared before County Court on May 25, 2011, at which time he wasassigned counsel and the matter was adjourned to afford counsel an opportunity toreview defendant's file.[FN2]
In June 2011, defendant pleaded guilty to criminal possession of a controlledsubstance in the third degree—again in full satisfaction of the underlyingindictment—in exchange for a prison term of seven years (subject to credit fortime served) followed by two years of postrelease supervision. During the course of theplea colloquy, an extensive discussion was had with regard to whether defendant had aprior, valid felony conviction. Ultimately, the People agreed to treat defendant as a firstfelony offender, and no prior felony statement was filed. When defendant returned forsentencing in August 2011, he indicated that he wished to proceed pro se. Following acolloquy with defendant and assigned counsel, County Court granted defendant's requestand thereafter sentenced him to the agreed-upon prison term.[FN3] This appeal by defendantensued.[FN4]
Defendant initially contends that the underlying indictment was jurisdictionallydefective due to errors in the indictment number itself and in the list of charges containedon the indictment backer. "Although . . . a jurisdictional defect in anindictment is not waived by a guilty plea and may be raised for the first time on appeal[,]. . . not every defect in an indictment is a jurisdictional defect for thesepurposes. In essence, an indictment is jurisdictionally defective only if it does noteffectively charge the defendant with the commission of a particular crime" (People vIannone, 45 NY2d 589, 600 [1978] [citations omitted]; see People v Cruz, 104 AD3d1022, 1023 [2013]). Here, there is no question that the subject indictment, whichincorporated by reference the statutory provisions applicable to the crimes chargedtherein, was sufficient to apprise defendant of the charges against him (see People vCruz, 104 AD3d at 1023-1024; People v Brown, 75 AD3d 655, 656 [2010]), and thetypographical errors of which defendant now complains "constitute . . .technical, nonjurisdictional defect[s] that [were] waived by defendant's guilty plea" (People v Olmstead, 111 AD3d1063, 1064 [2013]; seePeople v Porath, 104 AD3d 1028, 1029 [2013], lv denied 21 NY3d 1019[2013]; People vSlingerland, 101 AD3d 1265, 1266 [2012], lv denied 20 NY3d 1104[2013]).
As for the arguments made by defendant in his pro se brief, defendant cannotchallenge [*3]County Court's decision granting his CPLarticle 440 motion and vacating his 2006 plea and sentence because, having successfullyobtained the very relief he sought, defendant is not an aggrieved party within themeaning of CPLR 5511 (see generally People v Baker, 131 AD2d 491, 491-492[1987], lv denied 70 NY2d 709 [1987]). With respect to defendant's ineffectiveassistance of counsel claim, defendant's present contentions—that counsel failedto properly investigate his case and provided inadequate or erroneousadvice—implicate matters outside of the record and, as such, are moreappropriately addressed in the context of a CPL article 440 motion (see People v Clapper, 133AD3d 1037, 1038 [2015], lv denied 27 NY3d 995 [2016]; People v Alnutt, 107 AD3d1139, 1144-1145 [2013], lv denied 22 NY3d 1136 [2014]). To the extentthat the balance of defendant's ineffective assistance of counsel claim impacts thevoluntariness of his plea, such claim is unpreserved for our review in the absence of anappropriate postallocution motion (see People v Horton, 140 AD3d 1525, 1525 [2016]; People v Islam, 134 AD3d1348, 1349 [2015]). "Further, the narrow exception to the preservation rule was nottriggered here, as defendant did not make any statements during the plea allocution thatnegated an essential element of the crime or otherwise cast doubt upon his guilt" (People v Perkins, 140 AD3d1401, 1403 [2016] [internal quotation marks and citations omitted]).
Nor are we persuaded that County Court erred in granting defendant's request toproceed pro se at the time of sentencing. "A criminal defendant may be permitted toproceed pro se if the request is timely and unequivocal, there has been a knowing andintelligent waiver of the right to counsel, and defendant has not engaged in conduct thatwould interfere with a fair and orderly [proceeding]" (People v Hamilton, 133 AD3d 1090, 1093 [2015] [internalquotation marks and citations omitted]; see People v Brooks, 140 AD3d 1780, 1781 [2016]). Whenfaced with such a request, County Court must "engage[ ] in the requisite inquiry,examining defendant's education, occupation, previous exposure to legal procedures andother relevant factors bearing on a competent, intelligent, voluntary waiver" (People vHamilton, 133 AD3d at 1093 [internal quotation marks and citation omitted]; seePeople v Brooks, 140 AD3d at 1781). Here, defendant made a timely andunequivocal request to proceed pro se, in response to which County Court questioneddefendant as to his legal knowledge and experience and inquired as to whether defendantwas aware of the risks that self-representation might entail; defendant, in turn, reiteratedhis desire to proceed pro se. In addition to the information gleaned during the colloquywith defendant, County Court was aware that, despite a lack of formal education ortraining, defendant had prevailed on his pro se motion to vacate his prior conviction andsentence. Under these circumstances, we have no quarrel with County Court's decision topermit defendant to proceed pro se at the time of sentencing.
As a final matter, defendant argues that his already-completed sentence should bevacated due to the People's failure to file a prior felony statement pursuant to CPL400.21. During the course of the plea colloquy, County Court inquired as to whether theinstant offense was defendant's second felony offense. Defense counsel acknowledgedthat defendant had a prior felony conviction, but indicated that defendant was asserting"that the prior conviction cannot count as a predicate for this case because the originalsentence was illegal." Upon further inquiry by County Court, defendant clarified that hewas contending that the plea underlying the prior conviction was "unlawful," in responseto which County Court indicated that it would afford defense counsel time to explore andresolve the issue of whether defendant was in fact a predicate felon. Following additionaldiscussion, the People—reasoning that defendant's felony offender status wouldnot affect the previously agreed-upon sentence one way or the other—indicatedthat they would not "seek the prior felony" and were content to have defendant sentencedas a first felony offender. Accordingly, no prior felony statement was filed, anddefendant thereafter was sentenced both in accordance with the terms of the pleaagreement and to a term of imprisonment consistent with the sentencing range applicableto a first felony [*4]offender.
Assuming, without deciding, that the People's failure to file a prior felony statement(see CPL 400.21) has been preserved for our review (see People v Brown, 70 AD3d1302, 1305 [2010], affd 17 NY3d 742 [2011]; compare People vSamms, 95 NY2d 52 [2000], with People v Pellegrino, 60 NY2d 636[1983]), we find the People's omission in this regard to be harmless error and, further,that granting the pro se relief requested by defendant—vacating the sentencepreviously imposed and remitting for resentencing—would, under the particularfacts of this case, "be futile and pointless" (People v Bouyea, 64 NY2d 1140,1142 [1985]; accord People vFuentes, 140 AD3d 1656, 1657 [2016], lv denied 28 NY3d 1072 [2016];People v Leon, 23 AD3d1110, 1112 [2005], lv denied 6 NY3d 755 [2005]; People v Dawson,269 AD2d 867, 868 [2000]). As noted previously, defendant, who actually benefittedfrom the People's failure to comply with CPL 400.21 and, hence, suffered no prejudice asa result of this omission, has served his sentence, and his period of postreleasesupervision has expired. Accordingly, remitting this matter for resentencing would serveno purpose other than to potentially expose defendant to an additional period ofincarceration. Defendant's remaining contentions, to the extent not specifically addressed,have been examined and found to be lacking in merit.
Lynch, Rose, Clark and Aarons, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1:Defendant's 2006 guiltyplea was premised upon his possession of two ounces of cocaine, but a 2004 amendmentto Penal Law § 220.18 had increased the aggregate weight required for thatcrime from two ounces to four ounces (see L 2004, ch 738, § 21).
Footnote 2:County Court notedduring the May 2011 appearance that, upon "calculat[ing] the conviction," it appearedthat the Department of Corrections and Community Supervision no longer had a basisupon which to retain custody of defendant and, therefore, it was anticipated that custodyof defendant would be transferred to the Ulster County Jail pending further proceedings.
Footnote 3:Defendant finishedserving this prison sentence and was released to parole supervision in November 2011,and his period of postrelease supervision expired in November 2013 (see Dept ofCorrections and Community Supervision Inmate Population Information Search,http://nysdoccslookup.doccs.ny.gov/GCA00P00/WIQ2/WINQ120).
Footnote 4:Although defendantfiled his notice of appeal in September 2011, he did not perfect his appeal in this Courtuntil March 2016.